Official Opinion 2011-3

The Georgia Aviation Authority is not a law enforcement agency within the meaning of O.C.G.A. § 16‑13‑49 for the purpose of sharing in forfeiture funds

You have asked my opinion whether the Georgia Aviation Authority (GAA) is a law enforcement agency within the meaning of O.C.G.A. § 16‑13‑49 for the purpose of sharing in proceeds of criminal forfeitures. This inquiry must begin with a review of state law related to criminal forfeitures and the definition of law enforcement agency.

Official Code of Georgia Annotated § 16‑13‑49 is the state statute providing the procedure for seizing and instituting forfeiture proceedings against certain property and proceeds used in or derived, directly or indirectly, from a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16‑13‑20 to ‑56 (Article 2 of Chapter 13 of Title 16) (hereafter G.C.S.A.). Within the parameters set out in the statutory scheme of O.C.G.A. § 16‑13‑49, which limitations are not pertinent to this discussion, such contraband property may be seized by any “authorized agent or drug agent . . . or law enforcement officer of this state or of any political subdivision thereof who has power to make arrests or execute process or a search warrant . . . .” O.C.G.A. § 16‑13‑49(g)(1).

The guidelines for disposition of property or the distribution of proceeds therefrom seized and forfeited under the G.C.S.A. are established in O.C.G.A. § 16‑13‑49(u). The provisions concerning distribution of money or in kind property to the state are found in subsection (u)(4), which provides in pertinent part for pooling the proceeds and distributing as follows:

(B) All costs, including court costs, shall be paid and the remaining pool shall be distributed pro rata to the state and to local governments, according to the role which their law enforcement agencies played in the seizure of the assets; provided, however, that the amount distributed to the state shall not exceed 25 percent of the amount distributed . . . .

* * *

(D)(iv) Money distributed to the state pursuant to this subsection shall be paid into the general fund of the state treasury, it being the intent of the General Assembly that the same be used, subject to appropriation from the general fund in the manner provided by law for representation of indigents in criminal cases; for funding of the Crime Victims Emergency Fund; for law enforcement and prosecution agency programs and particularly for funding of advanced drug investigation and prosecution training for law enforcement officers and prosecuting attorneys; for drug treatment, rehabilitation, prevention, or education or any other program which responds to problems created by drug or substance abuse; for use as matching funds for grant programs related to drug treatment or prevention; or for financing the judicial system of the state.

(v) Property distributed in kind to the statepursuant to this subsection may be designated by the Attorney General, with the approval of the court, for use by such agency or officer of the state as may be appropriate or, otherwise, shall be turned over to the Department of Administrative Services for such use or disposition as may be determined by the commissioner of the Department of Administrative Services.

(Emphasis added.) The Code section, then, provides that forfeited money may be distributed to the state and must be paid into the general fund of the state treasury according to the role the state law enforcement agency played in seizing the assets. In kind property may be designated by the Attorney General for use by such law enforcement agency or officer of the state. Pretermitting the question whether the GAA could share in forfeiture proceeds, the paramount question is whether the GAA is a law enforcement agency since that is the prerequisite for authorizing distribution of money to the state treasury.

Code section 16‑13‑49 does not define “law enforcement agency.” However, there are other sources in state law to which we can look to determine what constitutes a law enforcement agency. The Peace Officer Standards and Training (POST) Act, O.C.G.A. § 35‑8‑1 through -26, e.g., defines a “law enforcement unit” as “[a]ny agency, organ, or department of this state, a subdivision or municipality thereof, or a railroad whoseprimary functions include the enforcement of criminal or traffic laws, the preservation of public order, the protection of life and property, or the prevention, detection, or investigation of crime.” O.C.G.A. § 35‑8‑2(7)(A) (emphasis added). Article 2 of Chapter 3 of Title 35, which establishes the Georgia Crime Information Center within the Georgia Bureau of Investigation and makes it responsible, among other things, for collecting, compiling, and managing criminal history record information, also contains a definition of “law enforcement agency” as “a governmental unit of one or more persons employed full time or part time by the state, a state agency or department, or a political subdivision of the state for the purpose of preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.” O.C.G.A. § 35‑3‑30(6) (emphasis added). Similarly, O.C.G.A. § 16‑6‑25(a), concerning harboring, concealing, or withholding information concerning a sexual offender, defines “law enforcement unit” to mean any agency or department of the state or of a subdivision or municipality thereof “whose primary functions include the enforcement of criminal or traffic laws; the preservation of public order; the protection of life and property; or the prevention, detection, or investigation of crime.” (Emphasis added.) Article 6 of Chapter 9 of Title 16, dealing with computer systems protection, also defines “law enforcement unit” to include the primary duty of “enforcing the criminal laws and ordinances of the state or of the counties and municipalities of the state” and includes as examples the Department of Public Safety, municipal police, county police, sheriffs, and the Georgia Bureau of Investigation. O.C.G.A. § 16‑9‑92(12). The unifying theme in the definitions of “law enforcement agency” or “law enforcement unit” running throughout state law is that the primary duties, functions, or purposes of the agency are to enforce the criminal laws and ordinances of the state or its counties and municipalities; to prevent, detect, and investigate crime; to preserve public order; and to protect life and property.

Whether the Georgia Aviation Authority is a law enforcement agency turns on whether the General Assembly created it with the primary purpose of enforcing the criminal laws of the state; preventing, detecting, and investigating crime; preserving public order; and protecting life and property. The statute establishing the authority, O.C.G.A. §§ 6‑5‑1 to ‑10, was enacted at 2009 Ga. Laws 848. The general purpose and powers of the authority are set out in O.C.G.A. § 6‑5‑4. Subsection (a) provides that the “general purpose of the authority shall be to acquire, operate, maintain, house, and dispose of all state aviation assets, to provide aviation services and oversight of state aircraft and aviation operations to ensure the safety of state air travelers and aviation property, to achieve policy objectives through aviation missions, and to provide for the efficient operation of state aircraft.” The authority is the home of all state aircraft and is required to “provide priority support for those state agencies and departments, including local and state public safety and law enforcement entities, whose operations require aviation operations.” O.C.G.A. § 6‑5‑4(c). The authority is also directed to give first priority to responding to emergency law enforcement needs. O.C.G.A. § 6‑5‑7(b).

As you point out in your letter, all of the aviation personnel from four state agencies were transferred to the authority for administrative purposes only as authorized in O.C.G.A. § 6‑5‑4(a) when those agencies’ other aviation assets were transferred, and those POST-certified pilots remain on the payroll of their original agencies. Subsection (e) of O.C.G.A. § 6‑5‑3 authorizes the authority to designate certain positions as peace officers and personnel in those positions, who may exercise law enforcement authority, are required to comply with the Georgia Peace Officer Standards and Training Act, O.C.G.A. § 35‑8. Your letter indicates that you currently have 20 such POST-certified pilots.

From a review of O.C.G.A. § 6‑5‑4, it is evident that the primary purpose of the Georgia Aviation Authority as mandated by the General Assembly is to operate and maintain the state’s aviation assets and “to provide aviation services and oversight of state aircraft and aviation operations.” Neither subsection (a) nor subsection (b), which describes the powers of the GAA, grants the GAA the authority to exercise general law enforcement powers.[1] Although the GAA provides valuable assistance to various agencies with law enforcement responsibility, that does not make the authority a de facto law enforcement agency in and of itself. The Attorney General has previously opined that similar agencies that provide assistance to law enforcement are not themselves law enforcement units as defined by state law. See, e.g., 1983 Op. Att’y Gen. 83‑67 (East Point Communications Department providing dispatch and other police assistance is not a law enforcement unit as defined by O.C.G.A. § 3‑8‑2) and 1985 Op. Att’y Gen. U85‑22 (district attorney’s office is not a law enforcement unit for the purposes of receiving gambling forfeiture assets under O.C.G.A. § 16‑12‑32 (h)). Similarly, the GAA’s primary purpose is not to enforce criminal laws, but rather to assist with the aviation needs of law enforcement agencies for that purpose.[2]

Therefore, it is my official opinion that the Georgia Aviation Authority is not a law enforcement agency within the meaning of O.C.G.A. § 16‑13‑49 for the purpose of sharing in forfeiture funds.[3]

Prepared by:

JOSEPH DROLET

Senior Assistant Attorney General

[1] As discussed above, O.C.G.A. § 6‑5‑3(e) does permit certain designated personnel to be POST-certified and exercise law enforcement power; however, permitting select employees to exercise such power does not transform the authority itself into a law enforcement agency.

[2]Cf. 1995 Op. Att’y Gen. 95‑29, which addressed the unique situation of the National Guard and recognized its ability to function as a law enforcement agency under the limited circumstances described in the opinion. Unlike the Georgia Aviation Authority, the National Guard has as a primary function preserving order and protecting life and property. When coupled with a specific grant of authority under both federal and state law to exercise its authority in drug interdiction and counterdrug activities, under the circumstances described in the opinion the National Guard is a law enforcement agency eligible to share in the proceeds of drug-related forfeitures. And as the opinion further notes, O.C.G.A. § 45‑12‑34 refers to the National Guard as another state law enforcement agency when called upon under the Governor’s emergency powers.

[3] It would further appear that pursuant to O.C.G.A. § 16‑13‑49(u)(4)(D)(iv) GAA, as a state agency, would be required to turn over all funds to the general fund of the state treasury. This may not preclude application for federal funds pursuant to 21 U.S.C. § 881; however, the agency must still be designated as law enforcement.